Conservative Donnybrook

I have posted this in response to Karl’s post on the recent homeschooling case in California. While I do not agree with Karl’s assertion that this case turns on the 1st Amendment’s Free Exercise clause, I have chosen to analyze the issue from this standpoint.  In all reality, the issue is further muddled by the application of the Free Exercise clause.  I will not attempt to analyze the case as thoroughly as would be required under a claim of religious intolerance as this would require me to discuss the test for religion in the first instance, valid beliefs in the second and so on.  Instead, I will simply tackle the issue from an over simplistic legal perspective accepting Karl’s First Amendment premise.

The free exercise of religion is a right guaranteed by the 1st Amendment.  Many Supreme Court cases have demonstrated the importance of this clause.  In deciding cases based on a claim of free exercise, the Court traditionally applied a compelling interest test.  The Court also has expressed that facially neutral laws will not be subject to heightened or special scrutiny. 

Following the decision in Employment Division v. Smith, Congress passed and President Clinton signed the Religious Freedom Restoration Act of 1993. (P.L. 103-141).  The RFRA required courts to apply strict scrutiny to cases involving government regulation and restrictions on the free exercise of religion.  Both the left and the right sides of the aisle joined hands to sing Kumbaya and celebrate their victory.  Yet the song was not long lived.  The Act was struck down as a violation of the Separation of Powers doctrine.    Continue Reading »